22-ORD-269
December 15, 2022
In re: Reginald Grider/Jefferson County Commonwealth’s Attorney
Summary: The Jefferson County Commonwealth’s Attorney (“the
Commonwealth’s Attorney”) did not violate the Open Records Act (“the
Act”) when he withheld a record pertaining to criminal litigation under
KRS 61.878(1)(h).
Open Records Decision
On November 7, 2022, Reginald Grider (“Appellant”) requested that the
Commonwealth’s Attorney provide a copy of the grand jury transcript or audio
recordings in a case in which the Appellant was the defendant. In a timely response,
the Commonwealth’s Attorney denied the Appellant’s request on the grounds that
the requested records were records pertaining to criminal litigation, which are
exempt under KRS 61.878(1)(h). This appeal followed.
Under KRS 61.878(1)(h), “records or information compiled and maintained by
county attorneys or Commonwealth’s attorneys pertaining to criminal investigations
or criminal litigation shall be exempted from the provisions of [the Act] and shall
remain exempted after enforcement action, including litigation, is completed or a
decision is made to take no action.” Grand jury records are records pertaining to
criminal litigation. See, e.g., 17-ORD-085; 11-ORD-079; 00-ORD-116. Accordingly, the
Commonwealth’s Attorney did not violate the Act when he denied, under KRS
61.878(1)(h), the Appellant’s request for transcripts or audio recordings of the grand
jury proceedings.1
1
The Appellant argues that he is entitled to obtain the grand jury records through discovery under
Brady v. Maryland, 373 U.S. 83 (1963). However, the fact that a criminal defendant may obtain a
transcript of the grand jury proceedings through discovery, as permitted under RCr 5.16(3), is not
determinative of whether he may obtain it under the Act. See, e.g., 12-ORD-032; 03-ORD-126.A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#443
Distributed to:
Reginald L. Grider, #253921
Erwin Roberts, Esq.
Thomas B. Wine, Esq.